Prior equitable mortgage prevails over later attachment, preserving the secured creditor's rights and limiting the decree-holder's remedy.

A prior equitable mortgage by deposit of title deeds prevails over a later execution attachment, because rights existing before attachment are protected and the attachment cannot defeat the secured creditor's interest. The bank, as prior mortgagee, could proceed against the mortgaged property as a secured creditor, while the decree-holder's remedy was confined to any remaining assets or the balance sale proceeds after the bank's dues were satisfied. The attachment therefore remained subject to the bank's mortgage rights, and the decree-holder could not displace that prior security interest.

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Issues: Whether the prior equitable mortgage in favour of the bank prevailed over the subsequent attachment obtained by the decree-holder, and whether the decree-holder could proceed only against the remaining assets or balance sale proceeds after satisfaction of the bank's dues.

Analysis: The property attached in execution had been mortgaged to the bank earlier by deposit of title deeds, and the bank's secured interest was supported by the admitted mortgage and the records relating to the loan transaction. An attachment made after creation of such mortgage cannot defeat the rights of the prior mortgagee. Section 64 of the Code of Civil Procedure and Order 38 Rule 10 of the Code of Civil Procedure protect rights existing prior to attachment, so the attachment remained subject to the bank's mortgage rights and could not prevent the bank from proceeding as a secured creditor. At the same time, the decree-holder's right to pursue the remaining asset or balance sale proceeds after adjustment of the bank's dues was preserved.

Conclusion: The bank's prior mortgage had priority over the later attachment, and the attachment was subject to the bank's rights. The decree-holder was entitled to proceed only against the remaining sale proceeds after the bank's dues were satisfied. The challenge was therefore rejected in part and allowed in part.

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